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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Transport for London, R (On the Application Of) v London Tribunals (Environment and Traffic Adjudicators) (Rev1) [2023] EWHC 2889 (Admin) (17 November 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/2889.html Cite as: [2024] RTR 15, [2023] EWHC 2889 (Admin), [2023] WLR(D) 488, [2024] 4 WLR 13 |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE KING on the application of TRANSPORT FOR LONDON |
Claimant |
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- and – |
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LONDON TRIBUNALS (ENVIRONMENT AND TRAFFIC ADJUDICATORS) |
Defendant |
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- and – |
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(1) COMMERCIAL PLANT SERVICES (2) MITCHELL PERRY (3) RICHARD COOPER JACKSON (4) RAJAH MIAH |
Interested Parties |
____________________
The Defendant did not appear and was not represented.
The First Interested Party appeared by Karen Bagnell, its Compliance Administration Officer
Hearing date: 26 October 2023
____________________
Crown Copyright ©
MR JUSTICE SWIFT:
A. Introduction
"7.— Evidence of contravention
(1) A penalty charge may only be imposed in respect of a parking contravention on the basis of —
(a) a record produced by an approved device, or
(b) information given by a civil enforcement officer as to conduct observed by that officer."
Regulation 9 of the 2022 Regulations identifies the circumstances in which a "civil enforcement officer" (i.e., a parking warden employed by a relevant enforcement authority such as Transport for London) can give notice of a penalty charge, and how notice of the charge is to be given.
"9.— Penalty charge notices for parking contraventions: service by civil enforcement officers
…
(2) Where a civil enforcement officer has reason to believe that a penalty charge is payable in respect of a parking contravention otherwise than on a road, the civil enforcement officer may give notification of that charge by—
(a) fixing a penalty charge notice to the vehicle, or
(b) giving a penalty charge notice to the person appearing to the civil enforcement officer to be in charge of the vehicle.
(3) Except as provided for in paragraphs (4) to (6) and regulation 10, notification of a penalty charge in respect of a parking contravention on a road may only be given by a civil enforcement officer by fixing a penalty charge notice to the vehicle."
"10.— Penalty charge notices for relevant road traffic contraventions: enforcement authority
…
(2) An enforcement authority may give notification of the penalty charge by serving a penalty charge notice by post where –
(a) on the basis of a record produced by an approved device, the authority has reason to believe a penalty charge is payable with respect to
(i) a regulation 11 parking contravention …"
In this instance, the relevant approved device is a fixed roadside camera. A "regulation 11 parking contravention" includes a parking contravention "… on a road in the circumstances specified in regulation 11" (see regulation 10(3)) and includes a contravention "… where the relevant vehicle is stationary on a … red route" (see regulation 11(1)(d)). The definition of red route in regulation 11(2) was the focus of the issue before the adjudicators and is also the focus of Transport for London's challenge to the adjudicators' decision:
""red route" means a road marked in accordance with—
(a) diagram 1018.2 at item 11 or diagram 1017.1 at item 12 in Part 4 of Schedule 7 to the Traffic Signs Regulations, and
(b) the upright sign at Part 1 of Schedule 6 to those Regulations"
1018.2
1017.1
Diagram 1018.2 is a double red line next to the curb. The description in Schedule 7 that goes with this diagram is "Stopping of vehicles prohibited at all times Edge of carriage way". Diagram 1017.1 is a single red line next to the curb. The description going with this diagram is "Stopping of vehicles prohibited for a time that is not continuous throughout the year".
The marking "doctor" is immaterial for present purposes. It was accepted at the adjudicators' hearing that Diagram 1028.4 is the generic form for any parking bay, not just "doctor only" parking bays (see the adjudicators' decision at paragraph 26). The description provided with this diagram reads as follows:
"Alternative types of parking bay-
(a) At the edge of the carriageway and situated wholly on either the carriageway or footway; or
(b) In the centre of the carriageway or partly on the carriageway and partly on the footway;
+ variant 5 on red route".
Several permitted "variants" are specified. These are all listed in Part 5 of Schedule 7 to the 2016 Regulations, but none is material to any issue in these proceedings.
B. The challenge to the adjudicators' decision on the appeals
(1) The adjudicators' decision
"Red route means a road conveying such red route road markings and signs as authorised and directed by the Secretary of State in exercise of powers conferred on him by sections 64(1) and (2) and 65(2) of the Road Traffic Regulation Act 1984".
But that only reflected the fact that the 2016 Regulations had not yet been made.
"Red route means a road marked in accordance with diagram 1018.2 at item 11 or diagram 1017.1 at item 12 of Part 4 of Schedule 7 to the Traffic Signs Regulations and the upright sign at Part 1 of the Schedule 6 to those Regulations."
That definition was in regulation 9A(7) of the 2007 Regulations. It is word for word the same as the definition now in regulation 11(2) of the 2022 Regulations, albeit not laid out in sub-paragraphs (a) and (b) as it is in the 2022 Regulations.
"7.3 Ministers are concerned that this overuse of CCTV has unfair consequences on the public. An individual accused via CCTV misses an initial opportunity to receive discretion; an opportunity that is available to someone who is observed by a Civil Enforcement Officer (CEO). It is also unfair because drivers receive penalty notices in the post weeks later. With no opportunity to examine the parking location as it was at the time of the alleged contravention. Signs may have been obscured or fallen down, and lines could have been hidden – which could change before the driver could return to inspect the location.
7.4 The Government believes that powers are not being used as originally intended. Statutory guidance requires that "approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. …
7.5 These legislative changes are intended to be a proportionate response to this. With local authorities seeming to ignore guidance, Ministers felt something more robust than tightened guidance would be necessary. By requiring a notice to be affixed to the vehicle whilst retaining the possibility of using CCTV and service by post in certain cases (such as contraventions outside schools and along red routes), Ministers consider the right balance will be struck between ensuring safety and traffic flow, whilst ensuring CCTV is not used excessively."
When reaching their conclusion on the meaning of regulation 11(2) of the 2022 Regulations, the adjudicators had in mind whether notification by post of parking contraventions of the type before them was consistent with the sentiment in the Explanatory Note. At paragraph 56 of their decision the adjudicators stated as follows.
"56. Second, and linked to what was said in the explanatory memorandum to the 2015 Amendment Regulations at paragraph 7.3, a motorist who receives a PCN issued on the basis of evidence produced on an approved device in respect of an alleged contravention of a loading/unloading bay may find it impossible to obtain the necessary evidence, after the event, to discharge the burden of proving loading/unloading. A motorist parked in such a bay who encounters a CEO may, there and then, be able to show the CEO that s/he is loading or unloading or if served with a PCN at the scene, can readily obtain the evidence – perhaps from the persons at the premises at which s/he was loading or unloading – to substantiate that claim in representations. A prime example of this is in Mr Jackson's case in which he might have had the chance to obtain evidence there and then from the premises at which he had made the purchase in question. That chance, is to a significant extent, diminished if the PCN is served well after the event on the basis of CCTV footage."
Mr Jackson's case was one of the 4 appeals in which the "core issue" (i.e., the meaning and application of the definition of red route in regulation 11(2)) was the decisive issue. The adjudicators were concerned that enforcement of penalty contraventions of this type in reliance on camera evidence was too prone to error, in that whether a contravention had occurred could depend on matters unlikely to be captured in a photograph. One example arose from the facts of Mr Jackson's case – whether the vehicle was stationary only for the purpose of loading or unloading. Another possible situation the adjudicators referred to was one where commission of the contravention turned on whether the vehicle had the benefit of an exemption such as a disabled person's blue badge. Depending on how the vehicle was parked a camera picture might not pick up a blue badge even when the badge was properly displayed.
"60. The panel finds, having analysed the extensive submissions and materials with which we have been provided, that parking contraventions on a red route enforceable on the basis of a record produced by an approved device are confined, in the context of Regulation 11(2) to those where the vehicle is stationary on a length of road marked with double or single red line markings. There is a material distinction between the definition of a red route for the purposes of the [2016 Regulations] and the definition in Regulation 11(2) governing the circumstances in which camera enforcement of parking contraventions is permissible. That is to say, the contexts are different.
61. No one suggests that contraventions of red route parking bays marked with the [Diagram 1028.4 marking] are not enforceable at all. They are enforceable but, the panel finds, the meaning of the 2022 Regulations is that they are not enforceable on the basis of a record produced by an approved device. They are enforceable by CEOs and in the event the CEO is unable to effect service of the PCN in the circumstances described in Regulation 9(4) to (6), by post."
In other words, unless the parking contravention on a red route occurred at a place marked with a single or double red line, the contravention is not a "regulation 11 parking contravention".
"51. Without the express division into limbs (a) and (b) as is seen in Regulation 11(2) of the 2022 Regulations, one logical reading of the definition in Regulation 9A(7) is as follows:
"Red route means a road marked in accordance with:
[Diagram 1018.2 at item 11 of Part 4 of Schedule 7 to the Traffic Signs Regulations]
or
[Diagram 1017.1 at item 12 of Part 4 of Schedule 7 to the Traffic Signs and Regulation and the upright sign at Part 1 of Schedule 6 to those regulations]"
52. That is to say, with the parentheses inserted as above, CCTV enforcement is available where the vehicle is stationary on a red route marked either with double red lines (in which case no upright sign is required) or with a single red line (in which an upright sign is also required, to state the restricted hours). That construction of Regulation 9A(7) avoids the unsatisfactory consequences of Mr Murray-Smith's literal approach. It is also, in the Panel's view, consistent with a 'purposive' and common-sense construction. It would follow that if that was the correct interpretation of Regulation 9(A)(7), and if TfL is correct that the definition is simply carried over to the 2022 Regulations, the insertion of the 'limbs' (a) and (b) would be a drafting error, albeit an error primarily of form not substance. The drafting error could be put right if the words of limb (b) were read as if the words 'in the case of diagram 1017.1 at item 12" were put before them'."
The submission for Transport for London to me was that this was the conclusion the adjudicators reached on the meaning of definition red route in regulation 11(2) and was the premise for the adjudicators' final conclusion at paragraphs 60 and 61.
(2) Decision
"… such signs in such positions as [the authority considers] requisite for securing that adequate information as to the effect of the order is made available to persons using the road."
This informs the content of the obligation to mark single or double red lines. It further supports the conclusion that when there is a parking bay marked in accordance with Diagram 1028.4 on a red route the road is nonetheless marked "in accordance with" the requirement for a single or double red line.
C. The Chief Adjudicator's decision on the review application
"12.— Review of adjudicator's decision
(1) The adjudicator may, on the application of a party, review—
…
(b) any decision … to dismiss or allow an appeal … on one or more of the following grounds—
(i) the decision was wrongly made as the result of an administrative error;
(ii) the adjudicator was wrong to reject the notice of appeal;
(iii) a party who failed to appear or be represented at a hearing had good and sufficient reason for failing to appear;
(iv) where the decision was made after a hearing, new evidence has become available since the conclusion of the hearing, the existence of which could not reasonably have been known or foreseen;
(v) where the decision was made without a hearing, new evidence has become available since the decision was made, the existence of which could not reasonably have been known or foreseen;
(vi) the interests of justice require such a review."
"31. Before we come to the grounds of challenge, we need to emphasise two preliminary points. The first is that these are judicial review proceedings. This is not an appeal. The decision of the judge cannot be quashed unless he erred in law in one or more of the respects in which a decision can be impugned on public law grounds. We recognise, however, that this court is a public authority which must itself comply with the Convention. We bear this in mind when we consider the Convention issues that arise in this case."
The Chief Adjudicator then went on to say this:
"I therefore find that the approach in Malik sets out the boundary of the adjudicator's power to review under the Appeal Regulations. The test is not whether the reviewing adjudicator agrees with the first instance determination so that they can substitute their own decision. The test is whether the first instance decision can be impugned because the original adjudicator was not entitled to reach the determination."
The Chief Adjudicator's conclusion was that the adjudicators had been entitled to reach the conclusion they had: i.e., there had been no public law error. The Chief Adjudicator further concluded that he would, in any event and as a matter of discretion, refuse the review application because Transport for London had been aware of the core issue (on the regulation 11(2) definition and the extent of the power to give notice of a penalty charge by post under regulation 10 of the 2022 Regulations) since the time of appeals heard by adjudicators as long before as July 2022, but had not in the words of the Chief Adjudicator "engaged" with appeals on that issue. The Chief Adjudicator's overall conclusion was this.
"I do not find that the interests of justice require a review for two reasons. First, I am satisfied that the panel was as a matter of law entitled to reach its determination. Secondly, TfL has not acted in the interest of justice to bring a resolution of the core issue with due expediency."
The focus of Transport for London's challenge is the first of these grounds.
"We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. It the matter has been ventilated and properly argued, then error of law of that kind fall to be corrected by this appeal tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the tribunal which, in our view, can be correctly dealt with by a review under rule 10 of schedule 1 to the Industrial Tribunal (Rules of Procedure) Regulations 1980, however important the point of law or fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument."
D. Disposal